dismissed L-1A Case: Watch Wholesale

identiWhig data deleted to 
prevent clearly unw-ted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 08 025 50095 Office: VERMONT SERVICE CENTER Date: gp 0 3 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
&JJ 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 08 025 50095 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimrnigrant visa petition seeking to extend the employment of the beneficiary as an 
L-1 A nonimrnigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a limited liability company organized 
under the laws of the State of Georgia and is allegedly a watch wholesaler. The beneficiary was granted a 
one-year period of stay to open a new office in the United States, and the petitioner now seeks to extend the 
beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director 
erred and that the beneficiary will perform primarily qualifying duties. 
To establish eligibility for the L-1 nonirnrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of Ill-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
EAC 08 025 50095 
Page 3 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence 
of wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential fimction within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the term "executive capacity" as an 
EAC 08 025 50095 
Page 4 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or hction of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101 (a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary will be employed as a hybrid "executive/rnanager" and 
rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that 
the petitioner is asserting that the beneficiary will be employed in either a managerial or an executive capacity 
and will consider both classifications. 
The petitioner describes the beneficiary's proposed duties as "manager" of the two-employee operation in the 
Form 1-1 29 as follows: 
We currently have the need for a Manager to direct and coordinate activities of business, 
formulate company policies and goals, and exercise discretion over day-to-day operation of 
[the petitioner]. In this position, [the beneficiary3 will interview and select individuals to fill 
managerial and staff vacancies, maintain [sic] employment of staff whose performance do not 
meet the company's proprietary standard. [The beneficiary] wil1,also direct the compliance of 
workers with the company's established proprietary policies, procedures, and standards, such 
as safety, sanitation, financial budgets, and financial transactions. She will report directly to 
the Board of Directors for [the foreign employer] for financial transactions and personnel 
issues. Furthermore, she will review the operation records and reports to project sales and to 
detennine company profitability. [The beneficiary] will be in charge of the day-to-day 
operation of [the petitioner]. [The beneficiary] has been chosen for this assignment based 
upon her managerial expertise and experience in financial management. [The beneficiary's] 
presence in the United States is needed to oversee the US subsidiary's overall marketing and 
sales areas to ensure the US subsidiary's overall marketing and sales areas. 
The petitioner included a similar job description in its letter dated October 19,2007. 
On November 12, 2007, the director requested additional evidence. The director requested, inter alia, 
"evidence that establishes the duties" the beneficiary will perform in the United States, a description of the 
duties and educational requirements for each subordinate worker, and an organizational chart for the United 
States operation. 
EAC 08 025 50095 
Page 5 
In response, the petitioner submitted a letter dated November 27, 2007 in which the petitioner provides a 
materially identical job description for the beneficiary. The petitioner also submitted an organizational chart 
indicating that the beneficiary will supervise a single employee, a "sales representative." Finally, the 
petitioner described the duties of the "sales representative" in a document titled "Description of the Staff" as 
follows: 
[Clontact new and existing customers to discuss their needs, and to explain how these needs 
could be met by specific products and services, answer customer's questions about products, 
quote prices, credit terms and other bid specifications. 
While the petitioner claims that the beneficiary's position requires a bachelor's degree, the petitioner claims 
that the "sales representative" position requires only "[flamiliarity with the products of [the petitioner]." 
On December 19, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States. 
Counsel also claims that the beneficiary's supervision of the "sales representative" constitutes the supervision 
of a "professional." 
Upon review, counsel's assertions are not persuasive. 
Title 8 C.F.R. 9 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the beneficiary 
is not performing qualifying duties within one year of petition approval, the petitioner is ineligible by 
regulation for an extension. Future hiring or business expansion plans may not be considered. A visa petition 
may not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant matter, the petitioner has not 
established that the United States operation has reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. Again, a petitioner may not claim 
that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
EAC 08 025 50095 
Page 6 
day-to-day basis. For example, the petitioner states that the beneficiary will formulate policies and goals. 
However, the petitioner fails to specifically describe these policies and goals or explain what, exactly, the 
beneficiary will do to "coordinate" and "direct" business activities and worker compliance, or to be "in charge 
of the day-to-day operation," other than to act as a first-line supervisor of a single sales representative. The 
fact that the petitioner has given the beneficiary a managerial or executive title and has prepared a vague job 
description which includes inflated job duties does not establish that the beneficiary will actually perform 
managerial or executive duties. Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter 
of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 
F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 1 90 (Reg. Comrn. 1 972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in her operation of the business. As noted above, the petitioner asserts that the beneficiary 
will "manage" the petitioner's business operations through one subordinate sales representative. However, the 
record does not establish that the beneficiary will be relieved of the need to perform the non-qualifling tasks 
inherent to her ascribed duties by a subordinate staff. For example, the petitioner claims that the beneficiary 
will "review the operation records and reports to project sales and to determine company profitability." 
However, the petitioner does not explain who, other than the beneficiary, will produce these records and 
reports. Accordingly, it appears more likely than not that the beneficiary will primarily perform non- 
qualifying first-line supervisory, administrative, or operational tasks in her administration of the business. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 10 1 (a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comrn. 1988). A managerial 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. 10 1 (a)(44)(A)(iv) of the Act; see also Matter 
of Church Scientology International, 19 I&N Dec. at 604. 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise a single sales representative who is described 
as performing sales tasks. Accordingly, it has not been established that this worker is a supervisory or 
managerial worker given that he does not supervise a subordinate staff. Furthermore, the job description 
provided for this worker indicates that he performs the tasks necessary to the provision of a service or the 
production of a product. Finally, as the petitioner failed to establish the education required to perform the 
duties of the subordinate position, even though this evidence was requested by the director, the petitioner has 
not established that the beneficiary will manage a professional employee.' Failure to submit requested 
'1n evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. $ 1101(a)(32), states that "[tlhe termprofession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
EAC 08 025 50095 
Page 7 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 
103.2(b)(14). In fact, despite counsel's argument on appeal, it appears that the "sales representative" position 
only requires familiarity with the petitioner's products and does not require an advanced degree. Furthermore, 
the unsupported statements of counsel on appeal are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 1 83, 1 88-89 n.6 (1 984); Matter of Ramirez-Sanchez, 1 7 I&N Dec. 
503 (BIA 1980). Accordingly, the petitioner has not established that the beneficiary will be employed 
primarily in a managerial capacity.2 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary will manage an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
hnction with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 8 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the tasks related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record indicates that the beneficiary will primarily be a first-line supervisor of a non-professional 
employee or will perform non-qualifying tasks. Absent a clear and credible breakdown of the time spent by 
the beneficiary performing her duties, the AAO cannot determine what proportion of her duties will be 
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager. 
See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1 999). 
EAC 08 025 50095 
Page 8 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The beneficiary's job description is 
so vague that it cannot be discerned what, exactly, the beneficiary will do on a day-to-day basis. As explained 
above, it appears more likely than not that the beneficiary will be primarily employed as a first-line supervisor 
and will perform the tasks necessary to produce a product or to provide a service. Therefore, the petitioner 
has not established that the beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991)); Fedin Bros. Co. v. Sava, 90.5 F.2d 41,42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). Furthermore, it is appropriate for CIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the 
absence of employees who would perform the non-managerial or non-executive operations of the company, 
or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics 
Corp. v. INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason3 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
in a position that was managerial or executive in nature. 8 C.F.R. $8 214.2(1)(3)(iii) and (iv). 
The petitioner described the beneficiary's job duties abroad in the Form 1-129. As this job description is in the 
record, it will not be repeated verbatim here. Generally, the petitioner claims that the beneficiary devoted 
most of her time to preparing reports, analyzing costs, and other financial or administrative tasks. 
Furthermore, the petitioner submitted an organizational chart indicating that she supervised three persons 
abroad. Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in 
a primarily managerial or executive capacity. Similar to the United States position, it appears that the 
beneficiary primarily performed non-qualifying tasks abroad. Furthermore, to the extent the beneficiary was 
relieved of the need to perform some non-qualifying duties, it appears that the beneficiary served as a first- 
line supervisor, which is also a non-qualifying managerial duty. See sections 101(a)(44)(A) of the Act; see 
also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, and the petition may not be approved for this additional reason. 
3 
It is noted that, in denying the petition, the director indicated that the beneficiary's proposed $35,000.00 
annual salary was "incongruous with that of an employee who is actually managing other bona fide managers 
or professionals." The AAO will withdraw this comment. The director's comment is not supported by the 
Act or by any pertinent regulations. However, that being said, and for the reasons set forth supra, the 
petitioner has nevertheless failed to establish that the beneficiary will be employed in the United States in a 
primarily managerial or executive position. 
EAC 08 025 50095 
Page 9 
The previous approval of L-1A petitions does not preclude CIS from denying an extension based on a 
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 29 1 of the Act, 8 U.S.C. $ 1361. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.